DEBRA L. CROOKS, APPELLANT,
v.
DAVID C. CROOKS, APPELLEE
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The court held that a non-final restraining order changing custody cannot be entered ex parte without notice and sworn evidence.
The trial court entered an ex parte restraining order changing custody of the parties' children without notice or verified pleading/sworn evidence, re…
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[*919] PER CURIAM.
We reverse a non-final restraining order changing custody of the parties’ children. On remand, the court shall conduct an evidentiary hearing affording Appellant the opportunity to be heard.
The order was entered ex parte on an emergency basis without notice and without verified pleading or sworn evidence. It was essentially founded on an unsworn report by a guardian ad litem. Although not clear, Appellee’s petition resulting in the order was apparently brought under chapter 61, Florida Statutes. However, regardless of whether the temporary custody change and restraining order is founded on section 61.13, Florida Statutes, section 741.30, Florida Statutes, or rule 1.610, Florida Rules of Civil Procedure, it cannot be entered without sworn evidence. Swartsell v. Swartsell, 615 So. 2d 825 (Fla. 4th DCA 1993); Leinenbach v. Leinenbach, 634 So. 2d 252 (Fla. 2d DCA 1994); Forte v. Torres, 409 So. 2d 260 (Fla. 3d DCA 1982); Alarcon v. Alarcon, 370 So. 2d 105 (Fla. 3d DCA 1979).
It is now several months since entry of the ex parte order and this court has no information as to what, if anything, has occurred in the interim. Appellant had the opportunity to seek further relief in the trial court and apparently has elected not to do so. We also recognize that the order is based on a report by a guardian appointed by the court. Therefore, the emergency order shall remain in effect for a period not to exceed ten days from the date of our mandate.
GLICKSTEIN, STONE and STEVENSON, JJ., concur.
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FEE v. Usler, 761 So. 2d 361 (Fla. 5th DCA 2000)…issuance was an abuse of discretion. See also Swartsell v. Swartsell, 615 So. 2d 825 (Fla. 4th DCA 1993) (trial court improperly resolved issue of temporary custody of parties’ minor child without conducting ev-identiary hearing); Crooks v. Crooks, 657 So. 2d 918 (Fla. 4th DCA 1995) (unsworn report of guardian ad litem was insufficient basis upon which to predicate change of custody). The appealed order must accordingly be reversed. We remand for further evidentiary proceedings, if needed. REVERSED and REMA…
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Jones v. Jones, 761 So. 2d 478 (Fla. 5th DCA 2000)…temporary injunction, and direct that the injunction be dissolved. REVERSED and REMANDED. DAUKSCH and PETERSON, JJ., concur. . Jessie Kelly, bom June 4, 1981, and Leslie Wray, born July 2, 1984. . § 61.132 of the UCCJA. . See Crooks v. Crooks, 657 So. 2d 918 (Fla. 4th DCA 1995); Hayes v. Hayes, 578 So. 2d 54 (Fla. 2d DCA 1991). . See Simmons v. Simmons, 698 So. 2d 947 (Fla. 4th DCA 1997); Shaw v. Shaw, 696 So. 2d 391 (Fla. 4th DCA 1997).…
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Bahl v. Rupa P. Bahl, 220 So. 3d 1214 (Fla. 2d DCA 2016)…argues that the trial court erred in granting relief based on the guardian ad litem’s report and without sworn facts or testimony. The mother’s allegations were based on an unsworn guardian ad litem report filed with the court. See Crooks v. Crooks, 657 So. 2d 918, 919 (Fla. 4th DCA 1995) (reversing emergency ex parte order changing custody because it was entered “without notice and without verified pleading or sworn evidence” and “was essentially founded on an unsworn report by a guardian ad litem”); see als…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leinenbach v. Karyn Ruth Leinenbach, 634 So. 2d 252 (Fla. 2d DCA 1994)
- Alarcon v. Alarcon, 370 So. 2d 105 (Fla. 3d DCA 1979)
- Forte v. Torres, 409 So. 2d 260 (Fla. 3d DCA 1982)
- Lyons v. Gary, 615 So. 2d 825 (Fla. 4th DCA 1993)
- Swartsell v. Swartsell, 615 So. 2d 825 (Fla. 4th DCA 1993)